Can't fight in the U.S.

Photographer: Aizar Raldes/AFP/Getty Images

Bringing a Chicken to the Immigration Fight

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Cockfighting, although practiced around the world, is banned in all 50 states. But is someone who breaks the ban committing a crime of moral turpitude? A federal appeals court has said no, declining to deport an immigrant convicted of facilitating a cockfight. In a line that may outrage animal-rights activists, the court said that a crime of moral turpitude must involve harm to third parties, not just directly to the chickens.

The outcome is correct for the immigrant, but not precisely for the reason the court gave. In a society that condones the factory-farm killing of billions of animals, it would be the height of hypocrisy to deport someone for killing just one rooster pursuant to an unfamiliar cultural practice.

The immigration law at issue is vague to the point where it should arguably be unconstitutional. It says in effect that undocumented immigrants cannot have their deportation orders canceled if they’ve been convicted of a crime that, in the courts’ formulation, “categorically involves moral turpitude.” That puts immigration judges -- and the federal appeals courts that review their judgments -- in the awkward position of defining what counts as “moral turpitude.”

Agustin Ortega-Lopez came illegally into the U.S. from Mexico in 1992, and now has three children who are citizens. In 2008, 16 years after his arrival, he pleaded guilty to one federal misdemeanor count of facilitating cockfighting, for which he was sentenced to a year of probation. The government said he was a minor participant in the enterprise. As the appeals court put it, “He was hardly the Don Corleone (or even the Fredo) of this enterprise.”

But an immigration law judge and the Board of Immigration Appeals both ruled that Ortega-Lopez would have to be deported because cockfighting is categorically a crime of moral turpitude. The Board of Immigration Appeals defines moral turpitude as “conduct which is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” The board cited some court cases describing dogfighting as inhumane, and said that because all 50 states and the federal government have banned cockfighting, Ortega-Lopez must be deported.

The U.S. Court of Appeals for the 9th Circuit reversed that decision in an opinion by Barack Obama appointee John Owens, who’s acquiring a reputation for peppering his decisions with cultural references -- like the one to “The Godfather’s” hapless Fredo.

In an attempt to give context to the vague category of moral turpitude, Owens tried to argue that there must be harm to a victim. He cited language from a 9th Circuit precedent stating that “crimes of moral turpitude almost always involve an intent to harm someone, the actual infliction of harm upon someone, or an action that affects a protected class of victim.”

The harm principle, familiar to Philosophy 101 students, goes back to John Stuart Mill, who wrote that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” The harm principle is the cornerstone of libertarianism, and it’s pretty important to liberalism, too.

Of course, cockfighting does involve harm -- to the roosters. With some archness, Owens dismissed that concern. “We think a remand … is appropriate here,” he wrote, “as the crime at issue involving harm to chickens is, at first blush, outside the normal realm” of crimes involving moral turpitude.

You can hardly blame Owens or the judiciary for trying to transform the moral turpitude category into a harm requirement. The problem, of course, is that the language of “moral turpitude” doesn’t particularly track the idea of harm. Plenty of actions are profoundly immoral without directly harming third parties -- provided your conception of morality isn’t completely focused on consequences.

And as my own moral authority, my 9-year-old daughter, pointed out rather vociferously when we discussed the case, it’s plainly immoral to train and force roosters with metal spike affixed to their legs to fight each other, sometimes to the death. That, after all, is why we’ve made cockfighting into a crime throughout the U.S.

Yet it seems to me that the outcome of the 9th Circuit decision, preventing Ortega-Lopez’s deportation, is still correct. But why?

One option I considered but rejected is that, regardless of its illegality, cockfighting remains a common cultural practice throughout the world. In what may be the most famous essay in modern anthropology, titled “Deep Play: Notes on the Balinese Cockfight,” the late Clifford Geertz argued that in Bali circa 1958, cockfighting functioned as a central metaphor for making sense of the whole culture -- the way U.S. culture could be revealed “in a ballpark, on a golf links, at a race track, or around a poker table.”

On the surface, it’s appealing to think that something so culturally rich shouldn’t be deemed fundamentally immoral, even if it’s illegal.

But on reflection, plenty of deeply ingrained and revealing cultural practices are immoral -- whether they occur in the U.S. or abroad. Racial or gender-based violence are good examples.

No, the reason the appeals court was right not to order Ortega-Lopez deported is that it would be hypocritical to condemn the morality of cockfighting when our society kills some 9 billion chickens a year. (You read the number right -- it comes from the National Chicken Council.) Most of these are necessarily raised on factory farms that operate on enormous scale. A credible argument can be made that many standard, legal techniques of chicken-raising involve serious mistreatment of the animals.

I don’t know whether it’s appropriate to call it torture -- but it’s definitely just as morally bad as cockfighting, in which some animals are well-treated and can live long lives. It’s true we get pleasure from eating chicken, but it’s also true that cockfighting affords enjoyment.

Deporting someone for participating in a cockfight wouldn’t send a message of kindness to animals. It would send a message of cultural hypocrisy on an epic scale. And that’s not very moral.

  1. It's worth noting that cockfighting was also illegal in 1958 Indonesia, and Geertz actually describes the police breaking up a cockfight he was attending with his wife.

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Noah Feldman at nfeldman7@bloomberg.net

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